The Librarian of Congress on DVDs and Fair Use

It’s well known that the Librarian of Congress isn’t really a librarian. I for one am always puzzled why the job ad for Librarian of Congress doesn’t state the requirement for an ALA-accredited MLS degree. How else are they expected to find qualified candidates?

But now we know that the Librarian of Congress doesn’t think like a librarian, either. Several articlesreport on some new DMCA copyright exemptions from the Librarian of Congress. If you were just looking at headlines, you’d think the exemptions were all about jailbreaking smartphones, since you can legally jailbreak your iPhone, but not your iPad, because they’re really different somehow.

However, a big portion of the exemptions have to do with movies, especially what sort of DVD-ripping is and is not allowed.

A lot of librarians might wonder what difference that makes to libraries. Well, it makes a lot of difference to academic libraries, many of which rip DVDs for streaming video on course reserves.

Last year, UCLA was sued over this practice. UCLA won, but partly because of poorly framed lawsuit, and because of small technicalities like the group suing UCLA not even owning the copyrights that were supposedly infringed.

It would seem natural for librarians to think about this as an exercise in fair use, for which there is an educational exemption to copyright law. Instead, UCLA won by arguing that the public performance rights it had purchased with the DVDs allowed for the digital streaming to students over a closed network because that was analogous to showing the DVD in a classroom for educational purposes.

Thus, there hasn’t yet been a legal test of the fair use right to rip DVD content and stream it to students.

The Librarian of Congress, who gets to make up exemptions to the DMCA every three years, has created a fair use exemption for ripping DVDs. Here’s the description from ars technica:

The most complicated exemption focuses on DVDs. Between now and 2015, it will be legal to rip a DVD “in order to make use of short portions of the motion pictures for the purpose of criticism or comment in the following instances: (i) in noncommercial videos; (ii) in documentary films; (iii) in nonfiction multimedia e-books offering film analysis; and (iv) for educational purposes in film studies or other courses requiring close analysis of film and media excerpts, by college and university faculty, college and university students, and kindergarten through twelfth grade educators.” A similar exemption applies for “online distribution services.”

This is known as “space shifting,” i.e. transferring digital content from one medium to another. It’s what you do if you copy your CDs to load on your iPod. It’s also what you do if you copy DVDs to play on your iPad, except it’s not legal to do for your iPad, even if you bought the DVD yourself.

That’s because while you own the DVD, you don’t own the copy of the intellectual content on it, or so the law claims. If you want to watch that DVD of yours on your iPad, you can by it again from iTunes. As a librarian, I am legally obligated to inform you that’s what you should do, rather than using any of these DVD ripping tools to just make your own copy. Definitely don’t do that.

By now people are used to remaining ignorant of, or just ignoring, copyright law pertaining to intellectual property they’ve paid for and don’t share. No big deal. Record companies aren’t hounding people for ripping their own CDs to put on their iPods, although that would seem to be technically illegal by the LibrarianoC’s thinking. And now there’s this fair use exemption for educational purposes, so all’s well and good.

Except it really isn’t. UCLA didn’t rely on a fair use argument in their case, and based on what the Librarian of Congress is now saying, they really couldn’t, at least for the entire content of a movie. “Short portions…for the purpose of criticism or comment.” That’s all the space shifting allowed for educational fair use.

So it might only be a matter of time before some energetic anti-education film production company to start suing universities that stream complete movies for class purposes. If publishers like the Oxford University Press are willing to sue their own customers over course reserves, why would film producers balk?

The obvious market solution would be for libraries to purchase streaming rights to movies, but some companies won’t sell streaming rights to their movies. Thus, the only protections are fair use, which according to the Librarian of Congress won’t allow streaming whole movies, and a public performance right that has been successful in one case but might not be again.

Then again, DVDs will eventually be replaced by digital streaming, and libraries might not even be able to purchase movies at all. In that case, I guess all this talk about DVDs and space shifting won’t matter anyway, so why worry about it. Sorry I brought it up.

Comments

Not to mention the nightmare that is VHS tapes for which no DVD version has been made, the VHS is no longer sold, and which are starting to have trouble playing. Sure, in many cases it’s good to push instructors into finding more current sources. But there are cases where the subject matter hasn’t changed and the program is just perfect for that classroom use. The best solution in that case is…looking for another copy in VHS? Really??

One of the most notorious victims of space-shifting is “Eyes on the Prize” as the makers of the 8 hour civil rights documentary only had the budget for a limited license for much of the footage. After its broadcast run and release on VHS, the critically acclaimed documentary disappeared for years because nobody had the ability to obtain permission from all of the rights holders. With a giant load of grant funding, PBS was finally able to release the film on DVD in 2010 but even with monetary assistance they were only able to put together roughly half of the original footage.